Dems haven't learned ACA lesson

Memo to Democrats: This is what happens when you pass a law where you can’t fix simple drafting errors.

Within hours of each other, two federal courts reached exactly opposite conclusions Tuesday about whether the vague wording of Obamacare allows people to get subsidies through the federal health insurance exchange. One said, sorry, that’s not what the law says. The other said, sure, they can get the subsidies — the Obama administration has the power to do that.

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The conflicting rulings were another wake-up call for Democrats about the fragility of the health care law — and a reminder that whenever they think a lawsuit is no threat to the law, it’s probably a threat to the law.

It’s all because of what most Democrats insist is a drafting error in the law, but it’s kind of a big one. The federal health insurance marketplace is now serving 36 states that couldn’t or wouldn’t set up their own exchanges.

And now that the two courts have issued conflicting rulings, the odds are higher that the Supreme Court may have to settle the question — once again putting the fate of a major part of the law before the high court.

There’s no guarantee that the Supreme Court would take up the issue. But if it does, it’s not at all certain that the justices would allow the subsidies to keep flowing in the federal exchange. If it doesn’t, that could jeopardize the coverage for more than 7.3 million low- and middle-income people who would need those subsidies to be able to afford Obamacare coverage. Yes, the court upheld most of Obamacare in 2012 — but that was a different set of legal questions.

The split decision in the courts Tuesday is “the classic formula for a Supreme Court review, maybe on a fast track,” said William Galston, a domestic policy expert at the Brookings Institution.

It’s a lesson, some health care experts say, in why President Barack Obama and congressional Democrats took their chances in 2010 when they passed the Affordable Care Act using a special procedure called budget reconciliation. That allowed the Senate to pass the bill with just 51 votes, because they couldn’t get 60 votes after Republican Scott Brown was elected to fill Ted Kennedy’s Senate seat in Massachusetts.

But it didn’t allow Congress to fix simple wording mistakes in the law — an earlier version of which had squeaked through the Senate with GOP support in late 2009. The rules allowed only limited changes with a clear budget impact. It’s a bit like the college student who slaps together a rough draft of a term paper, expecting to clean it up before it’s handed in, only to find suddenly time is up.

The sloppy language stayed — and it came back to bite the Democrats on Tuesday.

“When you pass a bill by any means necessary, you can fix a lot, but you can’t fix everything,” said Thomas Miller, a health care expert at the conservative American Enterprise Institute. “The staff writes it late at night. It’s never reconciled … and they say, ‘Oh well, we’ll fix it after it’s passed.’”

The Obama administration and congressional Democrats insist they still have the stronger legal hand in the long run. “We are confident in the legal position that we have,” White House press secretary Josh Earnest said during a briefing after the first ruling. “It is pretty obvious what the congressional intent was.”

Supporters of the ACA — from academics and legal experts to Democrats on Capitol Hill — have long downplayed the law’s legal challenges, accusing the plaintiffs of trying to kill the law for partisan reasons. But some of those challenges have been successful. The most vivid example was the Supreme Court’s Hobby Lobby decision last month, when the high court ruled that the administration overreached by mandating that most employers provide contraception even if they had religious objections.

And in 2012, the court ruled the law’s Medicaid expansion had to be optional for states. But in that same decision the Supreme Court did uphold the individual mandate — a victory that makes the law’s supporters confident that the subsidies will survive, too.

“The full law was put before the Supreme Court, and the law stood,” said Tony Carrk, director of the Health Care War Room at the liberal Center for American Progress Action Fund.

The latest legal threat to Obamacare comes from a basic mistake in the wording — that 2009 drafting error. The law encourages states to set up their own health insurance marketplaces, but it also creates a federal marketplace as a fallback.

Yet the section on health insurance subsidies says they can be paid to anyone who signs up for coverage in “an Exchange established by the State.” It doesn’t say anything about the federal exchange.